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Another Kick at the Can for Trump

June 30, 2018

Legislatively Speaking

By Senator, Lena C. Taylor

The impact of Justice Kennedy’s Retirement Announcement

Lena C. Taylor

The latest round of Supreme Court rulings and a pending retirement is enough to raise the anxiety level of most folks. Whether pro or con, the nation’s top court is about to change. The swing votes of retiring Justice Anthony Kennedy is likely a thing of the past as the Trump administration will look for an appointment that is much more reliable to the conservative base. Kennedy, a lifelong Republican, took pivotal votes on the issues of affirmative action, a woman’s right to an abortion, same-sex marriage, challenging the notion of sentencing intellectually disabled defendants to death, and a host of other issues that gave many conservatives heartburn. Now more than ever, we are going to appreciate the ability of a justice to be impartial, show growth on an issue, or be open to another point of view. The laws are a guide, but we can never underestimate the role that politics, ideology, faith and several social determinants can play in influencing a justice’s interpretation of the law. Just look at what happened this week.

On Wednesday, the Supreme Court in a 5-4 vote, handed organized labor a major setback. Ruling that government workers who don’t want to join a union can’t be forced to help pay for collective bargaining, the decision broke along partisan lines. Public unions, who have been a major player in helping to shape political leadership, legislative policy, and workplace governance, are going to lose millions of dollars.

Earlier in the week, the U.S. Supreme Court uphold Donald Trump’s travel ban, which restricts entry, in some form, from Somalia, North Korea, Iran, Syria, Libya, Yemen, and Venezuela. Again, the decision was along partisan lines, with a 5-4 vote. In a historic turn, in deciding this constitutionality of the ban, a 1944 court case, Korematsu v. United States, was determined by the Chief Justice John Roberts to have been “wrongly decided”. This case centered around the courts approving the placement of Japanese-Americans in internment camps during World War II.

This was the first time the Supreme Court ever said this publicly. Whether you agree or not, the action opens the door to public criticism and perhaps reversals of past Supreme Court decisions, which has typically not been done. Rowe v. Wade, the landmark case that decided a woman’s decision to have an abortion, certainly comes to mind.

This feels like just the tip of the iceberg though. As the courts become more like a political actor, rather than an impartial referee that uses the rule of the law to guide their decisions, the threats to American democracy deepen. Could we see major decisions of the courts shifting or changing every 30–40 years?

There are folks who are depending on it and that’s why they were willing to steal a U.S. Supreme Court appointment from then President Barack Obama. On the day of the announcement of the travel ban, Kentucky’s U.S. Senator Mitch McConnell, couldn’t resist tweeting a photo of him and Justice Neil Gorsuch. Remember, McConnell blocked Obama from appointing Merrick Garland to the court. So now, we wait to see the impact of Trump’s next appointment.